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‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history

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(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.

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Commentary

The power of no

Pick one priority this year, not 10

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(Photo by Damian Palus/Bigstock)

January arrives with optimism. New year energy. Fresh possibilities. A belief that this could finally be the year things change. And every January, I watch people respond to that optimism the same way. By adding.

More workouts. More structure. More goals. More commitments. More pressure to transform. We add healthier meals. We add more family time. We add more career focus. We add more boundaries. We add more growth. Somewhere along the way, transformation becomes a list instead of a direction.

But what no one talks about enough is this: You can only receive what you actually have space for. You don’t have unlimited energy. You have 100 percent. That’s it.  Not 120. Not 200. Not grind harder and magically find more.

Your body knows this even if your calendar ignores it. Your nervous system knows it even if your ambition doesn’t want to admit it. When you try to pour more into a cup that’s already full, something spills. Usually it’s your peace. Or your consistency. Or your health.

What I’ve learned over time is that most people don’t need more motivation. They need clarity. Not more goals, but priority. Not more opportunity, but discernment.

So this January, instead of asking what you’re going to add, I want to offer something different. What if this year becomes a season of no.

No to things that drain you. No to things that distract you. No to things that look good on paper but don’t feel right in your body. And to make this real, here’s how you actually do it.

Identify your one true priority and protect it

Most people struggle with saying no because they haven’t clearly said yes to anything first. When everything matters, nothing actually does. Pick one priority for this season. Not 10. One.  Once you identify it, everything else gets filtered through that lens. Does this support my priority, or does it compete with it?

Earlier this year, I had two leases in my hands. One for Shaw and one for National Landing in Virginia. From the outside, the move felt obvious. Growth is celebrated. Expansion is rewarded. More locations look like success. But my gut and my nervous system told me I couldn’t do both.

Saying no felt like failure at first. It felt like I was slowing down when I was supposed to be speeding up. But what I was really doing was choosing alignment over optics.

I knew what I was capable of thriving in. I knew my limits. I knew my personal life mattered. My boyfriend mattered. My family mattered. My physical health mattered. My mental health mattered. Looking back now, saying no was one of the best decisions I could have made for myself and for my team.

If something feels forced, rushed, or misaligned, trust that signal. If it’s meant for you, it will come back when the timing is right.

Look inside before you look outside

So many of us are chasing who we think we’re supposed to be— who the city needs us to be. Who social media rewards. Who our resume says we should become next. But clarity doesn’t come from noise. It comes from stillness. Moments of silence. Moments of gratitude. Moments where your nervous system can settle. Your body already knows who you are long before your ego tries to upgrade you.  

One of the most powerful phrases I ever practiced was simple: You are enough.

I said it for years before I believed it. And when I finally did, everything shifted. I stopped chasing growth just to prove something. I stopped adding just to feel worthy.  I could maintain. I could breathe. I could be OK where I was.

Gerard from Baltimore was enough. Anything else I added became extra.

Turning 40 made this clearer than ever. My twenties were about finding myself. My thirties were about proving myself. My forties are about being myself.

I wish I knew then what I know now. I hope the 20 year olds catch it early. I hope the 30 year olds don’t wait as long as I did.

Because the only way to truly say yes to yourself is by saying no first.

Remove more than you add

Before you write your resolutions, try this. If you plan to add three things this year, identify six things you’re willing to remove. Habits. Distractions. Commitments. Energy leaks.

Maybe growth doesn’t look like expansion for you this year. Maybe it looks like focus. Maybe it looks like honoring your limits. January isn’t asking you to become superhuman. It’s asking you to become intentional. And sometimes the most powerful word you can say for your future is no.

With love always, Coach G.


Gerard Burley, also known as Coach G, is founder and CEO of Sweat DC.

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Greenland

The Greenland lesson for LGBTQ people

Playbook is the same for our community and Europeans

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(Photo by Maridav/Bigstock)

I understand my own geopolitical limits and don’t pretend to know how Europeans should respond to U.S. threats to seize Greenland or retaliate against anyone who opposes them. However, as I mentioned in March, it’s clear that for Europeans and LGBTQ+ people alike, hug-and-kiss diplomacy is over.

In practice, that means responding to the U.S. administration’s provocations with dialogue, human‑rights rhetoric, and reasoning may now be counterproductive. It looks weak. At some point, Europeans will have to draw a line and show how bullying allies and breaking international agreements carry a cost — and that the cost is unpredictable. On the surface, they have few options; like LGBTQ+ communities, they are very behind in raw power and took too long to wake up. But they still have leverage, and they can still inflict harm.​

Maybe it is time for them to call the bluff. America has a great deal to lose, not least its reputation and credibility on the world stage. Stephen Miller and Pete Hegseth, with all their bravado, obviously underestimate both the short‑ and long‑term geopolitical price of ridicule. Force the United States to contemplate sending troops into an ally’s territory, and let the consequences play out in international opinion, institutions, and markets.​

In the United States, LGBTQ+ communities have already endured a cascade of humiliations and live under constant threat of more. In 2025 our symbols and heroes were systematically erased or defaced: the USNS Harvey Milk was quietly renamed after a straight war hero, Admiral Rachel Levine’s title and image were scrubbed from official materials, Pride flags were banned from public buildings, World AIDS Day events were defunded or stripped of queer content, the Orlando memorial and other sites of mourning were targeted, the U.S. lead a campaign against LGBTQ+ language at the U.N., and rainbow crosswalks were literally ripped up or painted over. We cannot simply register our distress; we must articulate a response.​

In practice, that means being intentional and focused. We should select a few unmistakable examples: a company that visibly broke faith with us, a vulnerable political figure whose actions demand consequences, and an institution that depends on constituencies that still need us. The tools matter less than the concentration of force — boycotts, shaming, targeted campaigning all qualify — so long as crossing certain lines produces visible, memorable costs.​

A friend suggested we create what he called a “c***t committee.” I liked the discipline it implies: a deliberate, collective decision to carefully select a few targets and follow through. We need a win badly in 2026.

These thoughts are part of a broader reflection on the character of our movement I’d like to explore in the coming months. My friends know that anger and sarcasm carried me for a long time, but eventually delivered diminishing returns. I am incrementally changing these aspects of my character that stand in the way of my goals. The movement is in a similar place: the tactics that served us best are losing effectiveness because the terrain has shifted. The Greenland moment clarifies that we must have a two-pronged approach: building long-term power and, in the short term, punching a few people in the nose.

Fabrice Houdart published this column on his weekly Substack newsletter. The Washington Blade has republished it with his permission.

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Media obsess over ‘Heated Rivalry’ sex but ignore problem of homophobia in sports

4 major men’s leagues lack gay representation 13 years after Jason Collins came out

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Hudson Williams and Connor Storrie star in 'Heated Rivalry.' (Photo courtesy of Crave/HBO Max)

The mainstream media are agog over “Heated Rivalry,” the surprise hit HBO Max limited series about two professional hockey players who fall in love. 

The show’s stars, Connor Storrie (Ilya) and Hudson Williams (Shane), are everywhere — red carpets, award shows, morning news and late night shows. Female fans lined up for hours to catch a glimpse of Storrie, who appeared on the “Today” show last week. 

The interviews and coverage predictably involve lots of innuendo and snickering about the graphic sex scenes in the show. Storrie and Williams have played coy about their real-life sexual orientation, a subject of debate among some gay fans who would prefer they own their sexuality if, in fact, they are gay. 

But the big issue ignored by the media that the show tackles is the crippling effect of homophobia and the closet — not just on professional athletes but on anyone who isn’t comfortable being out at work. And it’s a growing problem given the hostile Trump administration. Attacks on LGBTQ people and the roll back of DEI and related protections are driving many Americans back into the closet, especially in D.C.’s large federal workforce. 

And the mainstream media seem totally unaware that there has never been an openly gay NHL player. Hell, there’s never even been a retired NHL player who came out. 

It’s a sad fact that I would not have predicted 13 years ago when Jason Collins bravely came out publicly while playing in the NBA, the first male athlete in the big four U.S. sports to do so. His announcement was widely covered in the mainstream media and Collins was even named to Time magazine’s “100 Most Influential People” list in 2014.

Then in February 2014, Michael Sam became the first openly gay player to be drafted into the NFL. He was released before the season began and did not play. But still, Sam’s decision to come out was celebrated. It felt like professional male sports was changing and finally shaking off its ingrained homophobia. Many of us awaited a flood of young professional athletes coming out publicly. And we waited. And waited. Then, seven years later, in June 2021, Carl Nassib came out, becoming the first active NFL player to do so. He was with the Las Vegas Raiders at the time and also became the first out player to play in the playoffs. He was released in the offseason and picked up by the Tampa Bay Buccaneers in 2022 and retired the following year. 

And that is the short history of out professional male athletes in the big four U.S. sports. (Women’s sports is a different story with many examples of out lesbian and bi players.) 

Sure, some pro athletes have come out after retiring, most notably Billy Bean, who went on to a long and successful career advocating from within for gay representation in Major League Baseball as the league’s vice president and ambassador for inclusion and later as senior vice president and special assistant to the commissioner.

But that’s a sorry record and professional sports leagues should redouble their efforts at making gay players (and fans) feel welcome. From fully embracing Pride nights again to adopting zero tolerance policies for hate speech, there’s much more work to be done to make it easier for pro male athletes to come out.  

“Heated Rivalry” star Williams recently told an interviewer that he has received private messages from closeted active pro athletes in multiple sports who don’t feel they can come out. How sad that in 2026, even the most successful (and wealthy) among us still feel compelled to hide in the closet. 

Let’s hope that “Heated Rivalry,” which has been renewed for a second season, sparks a more enlightened conversation about the closet and the need to foster affirming workplaces in professional sports and beyond.


Kevin Naff is editor of the Washington Blade. Reach him at [email protected].

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